Employee freedom of expression: proportionality is the key!

Until now, the case law of the Cour de cassation limited the exercise of freedom of expression to its abuse: “unless abused, the employee enjoys, inside and outside the company, his freedom of expression” (Cass., soc., March 27, 2013, 11-19.734, December 11, 2024, 22-24.004). Thus, the employee’s dismissal was justified when he had abused his freedom of expression. Otherwise, the dismissal was null and void for having infringed this freedom.

In practice, only abusive, defamatory or excessive language could be considered abusive, and thus justify dismissal.

The Cour de cassation has recently refined its jurisprudence:

In its three rulings of January 14, 2026 (23-19.947, 24-13.778, 24-19.583), the Cour de cassation now invites judges to carry out a proportionality control, in line with the jurisprudence of the European Court of Human Rights, also adopted by the French Supreme Court in matters of evidence law (Cass., civ., December 22, 2023, 20-20.648).

The Cour de cassation thus indicates the method to be followed by trial judges when it is claimed that a sanction infringes an employee’s exercise of his right to freedom of expression: weigh up this right against the employer’s right to protect his interests, and to do this, assess whether the measure is necessary in view of the aim pursued, and whether it is appropriate and proportionate to this objective.

To this end, the Supreme Court invites judges to take into consideration the content of the disputed remarks, the context in which they were spoken or written, their scope and impact within the company, and the negative consequences caused to the employer, and then to assess, on the basis of these different criteria, whether the sanction imposed was necessary and proportionate to the aim pursued.

What impact will this have on employers’ practices? In our view, this case-by-case assessment would make it possible to broaden the range of cases in which an employee’s comments could justify dismissal by his or her employer: even comments that are not abusive or defamatory (previously considered abusive only) could now justify dismissal of the employee, taking into account the context in which they were made and the legitimate interests that the employer intends to protect.

However, employees may be tempted to invoke a particular context to argue that their dismissal infringes their freedom of expression. For example, defamatory remarks taken in isolation could, on the contrary, be regarded as justified in the specific circumstances alleged by the employee who made the remarks, such as unequal treatment or a deterioration in working conditions…

Our advice: Before imposing any sanction based on remarks made by one of their employees, we recommend that you examine the context in which the remarks were made and weigh them up against the company’s legitimate interests, then, where appropriate, take great care in drafting the letter of dismissal. As the letter of dismissal sets the limits of the dispute, it is advisable to dwell not only on the nature of the remarks, but also on their context and their consequences for the company’s legitimate interests (harm to the mental health of other employees, damage to the company’s reputation, etc.).

Our employment law team will be happy to assist you in drafting your letter of dismissal.